LEE v. UNITED STATE OF AMERICA
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 09/19/2018. (ek)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IVAN LEE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 16-4709 (SDW)
OPINION
WIGENTON, District Judge:
Presently before the Court is Petitioner Ivan Lee’s motion to vacate sentence brought
pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence. (ECF No. 1).
Following an order to answer, the Government filed a response to the motion (ECF No. 12), to
which Petitioner has replied. (ECF No. 13). For the reasons set forth below, this Court will grant
Petitioner a hearing as to his plea-related ineffective assistance of counsel claim, grant Petitioner’s
request for the appointment of counsel (ECF No. 10) solely for the purposes of that hearing, will
deny Petitioner’s remaining claims and deny Petitioner a certificate of appealability as to his nonplea related claims.
I. BACKGROUND
Because of the nature of Petitioner’s claims, only a brief recitation of the background of
Petitioner’s criminal matter is necessary for the purposes of this opinion. Petitioner was charged
with the carjacking of a vehicle and brandishing a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c). See United States v. Lee, 634 F. App’x 862, 863 (3d Cir. 2015).
Although Petitioner pled guilty to the carjacking, he denied that he had been the one to use a
shotgun during the carjacking, and proceeded to trial on the charge of brandishing a weapon. Id.
Essentially, Petitioner sought at trial to claim that his co-defendant, Hanzah Darby, had brought
and used a shotgun during the carjacking without previously informing Petitioner of the weapon.
Following trial, however, the jury rejected that defense and found Petitioner guilty of brandishing
a weapon in furtherance of a crime of violence. Id. This Court thereafter sentenced Petitioner to
a combined sentence of 168 months imprisonment, including a 100 month sentence on the § 924(c)
charge. Id. Petitioner appealed, and the Third Circuit affirmed by way of an opinion issued on
December 8, 2015. Id. Petitioner thereafter filed his current motion to vacate sentence. (ECF
No. 1).
II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
2
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
2003).
B. Analysis
1. The need for an evidentiary hearing and the appointment of counsel
A district court need not hold an evidentary hearing on a motion to vacate where “the
motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.
Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's
personal knowledge, conclusively negates the factual predicates asserted by the petitioner or
indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,
587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. This Court finds that all of Petitioner’s
claims other than Petitioner’s plea related ineffective assistance claim are clearly without merit,
and that no hearing is needed to dispose of those claims. Because, however, Petitioner’s plea
related claim cannot be rejected on the record currently before the Court insomuch as it rises and
falls with the advice counsel gave Petitioner in relation to his plea, information which is outside
the record, the Court will hold a hearing only as to Petitioner’s plea related claim. Because this
Court will hold a hearing as to Petitioner’s plea related claim, and because Petitioner qualified for
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the appointment of counsel in his underlying criminal matter, this Court is required, pursuant to
Rule 8(c) of the Rules Governing Section 2255 Proceedings, to appoint Petitioner counsel for the
purposes of conducting that hearing. Petitioner’s request for the appointment of counsel (ECF
No. 10) shall therefore be granted only to the extent that counsel shall be appointed for the purposes
of conducting an evidentiary hearing as to Petitioner’s plea related claim.
2. Petitioner’s Johnson/Dimaya claim is without merit
In his chief claim, Petitioner argues that the residual clause of § 924(c) is unconstitutionally
vague pursuant to Johnson and Dimaya and that carjacking is therefore not a crime of violence
sufficient to support his conviction for brandishing a firearm in furtherance of a crime of violence
under § 924(c). Petitioner’s claim, however, is utterly without merit as it ignores the fact that §
924(c)’s definition of a crime of violence contains a valid force clause under which carjacking,
when accompanied by a conviction for brandishing a weapon, is categorically a crime of violence.
See, e.g., Darby v. United States, No. 18-10654, 2018 WL 3412846, at *2-3 (D.N.J. July 12, 2018).
As this Court explained in denying an identical claim in the § 2255 motion filed by Petitioner’s
codefendant,
[s]ection 924(c) provides a criminal penalty for any individual who
possesses, brandishes, or discharges a firearm in relation to either a
crime of violence or a drug trafficking crime. 18 U.S.C. § 924(c).
The statute further defines a “crime of violence” to mean an offense
“that is a felony” and either (a) “has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another” (the “force” or “elements” clause), or (b)“by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense” (the “residual” clause). 18 U.S.C. §
924(c)(3). In Johnson and Dimaya, the Supreme Court found that
the nearly identical residual clauses of two similar statutes were
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unconstitutionally vague. Dimaya, 138 S. Ct. at 1213-1223
(finding residual clause of 18 U.S.C. § 16(b) unconstitutionally
vague); Johnson, 135 S. Ct. at 2561-2563 (finding residual clause of
Armed Career Criminal Act unconstitutionally vague). Neither
case, however, invalidated the remaining elements clause of either
of those two statutes. Thus, even if this Court were to assume,
arguendo, that Johnson and Dimaya render the residual clause of §
924(c) unconstitutionally vague, Petitioner’s § 924(c) conviction
would remain entirely valid so long as his underlying crime,
carjacking pursuant to 18 U.S.C. § 2119(1), was a “crime of
violence” under the elements clause of the statute.
While the Third Circuit has not directly addressed the issue
of whether carjacking is under all circumstances categorically a
crime of violence under § 924(c), all of the Courts of Appeals to do
so post-Johnson have unanimously held that carjacking under §
2119 is categorically a crime of violence under the elements clause
of § 924(c). See, e.g., United States v. Gutierrez, 876 F.3d 1254,
1255-57 (9th Cir. 2017) ; United States v. Evans, 848 F.3d 242, 24548 (4th Cir. 2017); United States v. Jones, 854 F.3d 737, 740-41 (5th
Cir. 2017); In re Smith, 829 F.3d 1276, 1280-81 (11th Cir. 2016).
Unfortunately for Petitioner, he was not only convicted of
carjacking, but also of carjacking while brandishing a firearm in
violation of 18 U.S.C. § 924(C)(1)(A)(ii). In United States v.
Robinson, the Third Circuit held that Hobbs Act robbery, which
largely mirrors the carjacking statute in that both statutes require that
the defendant take either a motor vehicle or property of another by
force, violence or intimidation, see 18 U.S.C. § 2119; 18 U.S.C.
1951(b)(1), is categorically a crime of violence when accompanied
by a conviction for brandishing a weapon under § 924(c)(1)(A)(ii).
United States v. Robinson, 844 F.3d 137, 140-44 (3d Cir. 2016). In
a concurrence, one judge on the Robinson panel went further and
followed the Second Circuit in concluding that a crime involving
such a requirement is always a crime of violence with or without the
additional brandishing requirement based on the language Hobbs
Act robbery shares with the carjacking statute. Id. at 151 (Fuentes,
J., concurring, citing United States v. Hill, 832 F.3d 135 (2d Cir.
2016), amended 890 F.3d 51 (2018)). In United States v. Foster,
[734 F. App’x 129, 132 n. 5 (3d Cir. 2018)], the Third Circuit
applied Robinson and found that carjacking is also categorically a
crime of violence when accompanied by a conviction for
brandishing a weapon. Thus, the Third Circuit has concluded that
carjacking, when accompanied by a conviction for brandishing a
weapon under § 924(c)(1)(A)(ii), is categorically a crime of violence
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pursuant to the elements clause of § 924(c). Because carjacking,
when accompanied by the brandishing of a weapon, is categorically
a crime of violence under Third Circuit case law and because
Petitioner pled guilty to . . . carjacking and [was convicted of]
brandishing a weapon, his conviction is categorically a crime of
violence under the elements clause of § 924(c), and his conviction
is therefore proper even assuming that Johnson renders § 924(c)’s
residual clause invalid.
Darby, 2018 WL 3412846 at *2-3.
Like his co-defendant, Petitioner pled guilty to carjacking. Likewise, Petitioner was also
ultimately convicted following trial of brandishing a weapon in furtherance of a crime of violence
pursuant to § 924(c).
Indeed, in finding Petitioner guilty, the jury specifically found that
Petitioner “brandish[ed] [a] firearm in furtherance of a crime of violence” in the form of the
carjacking to which Petitioner pled guilty. (See Docket No. 13-56 at ECF No. 92). As Petitioner
was convicted of both carjacking and brandishing a weapon in furtherance of that carjacking, his
underlying crime is categorically a crime of violence under § 924(c)’s elements clause, and
Petitioner is not entitled to relief on his Johnson/Dimaya claim even if Johnson and Dimaya
rendered § 924(c)’s residual clause void. Petitioner’s Johnson claim is thus denied.
3. Section 924(c) is not void for vagueness for lack of a maximum sentence
Petitioner also contends that his conviction under § 924(c) is void as the statute is
unconstitutionally vague because it specifies only a minimum, and not a maximum, sentence.
Pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), a petitioner who brandishes a firearm in furtherance of a
crime of violence shall be sentenced to “a term of imprisonment not less than 7 years.” Where
Congress “provide[s] for ‘imprisonment of not less than [a definite term]’” without providing a
specific maximum sentence, Congress intends a “maximum [sentence] of life.” United States v.
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Williams, 892 F.2d 296, 304 (3d Cir. 1989) (quoting United States v. Jackson, 835 F.2d 1195, 1197
(7th Cir. 1987)), supersession by statute on other grounds recognized, United States v. Dodd, 225
F.3d 340, 347 n. 4 (3d Cir. 2000). Indeed, the Supreme Court has noted that the statute “alter[s]
only the minimum [sentence], the sentencing judge may impose a sentence well in excess of seven
years.” Harris v. United States, 536 U.S. 545, 554 (2002); overruled on other grounds, Alleyne
v. United States, 570 U.S. 99 (2013). Indeed, in his dissent in Harris, Justice Thomas specifically
observed that “the penalty range [for a petitioner who brandishes a weapon under § 924(c) is]
seven years to life imprisonment.” 536 U.S. at 576. The Third Circuit has reached the same
conclusion, see United States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009) (“[w]e are persuaded
that the express inclusion of a minimum sentence, but not a maximum sentence, indicates an
intention to make life imprisonment the statutory maximum” for § 924(c)), as have the other circuit
courts to have considered the question. See United States v. Johnson, 507 F.3d 793, 798 (2d Cir.
2007); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir. 2002); United States v. Sias, 227
F.3d 244, 246 (5th Cir. 2000); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir. 2001); United
States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States v. Avery, 295 F.3d 1158, 1170
(10th Cir. 2002); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000).. It has thus been
clear to all of the circuit courts who have reviewed the statute that § 924(c) imposes a maximum
sentence of life imprisonment.
A statute will only be held void for vagueness where “it fails to give ordinary people fair
notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.”
Johnson, 135. S. Ct. at 2556. The statute at issue here, the portion of § 924(c) setting forth the
penalties for violations of the statute, is not so vague. As the cases above demonstrate, the fact
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that the statute has a set minimum but not maximum penalty expresses an intent on the part of
Congress to impose a maximum sentence of life imprisonment. Nothing in the statute contradicts
that intent, and there is no reason to suppose that something other than life was intended as the
statutory maximum. An ordinary person, upon reading the statute, would understand that the
statute’s lack of an express maximum sentence implies a maximum sentence of life. Because an
ordinary person could therefore clearly understand the penalties imposed by the statute, and
because there is no evidence of arbitrary enforcement given the clear and widespread acceptance
by the courts that the maximum sentence is life imprisonment, Petitioner has failed to show that §
924(c)’s penalty provision is unconstitutionally vague in general or as applied to him. Petitioner
was thus neither sentenced unconstitutionally nor in excess of the statutory maximum when he
received a sentence of 100 months for brandishing a weapon in furtherance of a crime of violence
– only a year and a few months more than the required minimum for the offense for which he was
convicted. Petitioner’s vagueness challenge to § 924(c)’s penalty provisions is thus without merit
and must be rejected as such.
4. Petitioner’s ineffective assistance of counsel claims
In his remaining claims, Petitioner asserts that he suffered ineffective assistance of counsel
during the plea bargaining, pre-trial, and sentencing phases of his conviction. The standard
applicable to such claims is clear:
Claims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
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‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
To succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,
493 F.3d at 299.
In evaluating whether counsel was deficient, the “proper standard
for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s representation
was deficient, he must still affirmatively demonstrate that counsel’s
deficient performance prejudiced the petitioner’s defense. Id. at
692-93. “It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.”
Id. at 693. The petitioner must demonstrate that “there is a
reasonable probability, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where
a “petition contains no factual matter regarding Strickland’s
prejudice prong, and [only provides] . . . unadorned legal
conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
performance when possible, [Strickland, 466 U.S. at 697-98],”
courts should address the prejudice prong first where it is dispositive
of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).
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Judge, 119 F. Supp. 3d at 280-81.
Turning first to Petitioner’s claim that counsel was ineffective at sentencing in failing to
object to a sentence of more than seven years for brandishing a weapon, Petitioner essentially
asserts that counsel should have raised the vagueness argument discussed above centered on the
statute’s lack of an explicit maximum sentence, and that counsel therefore should have argued that
any sentence above seven years – the statutory minimum – violates Due Process. As explained
above, however, the statute has a maximum sentence – life – and the statute is not
unconstitutionally vague as to the appropriate penalty range. The objection Petitioner wishes
counsel had raised, then, is utterly without merit, and cannot form the basis of a claim of ineffective
assistance of counsel. See Wets v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (counsel cannot be
deemed ineffective for failing to raise a meritless claim”); see also United States v. Aldea, 450 F.
App’x 151, 152 (3d Cir. 2011).
Petitioner next asserts that counsel should have made certain pre-trial objections to the
admission of the shotgun found in his co-defendant’s apartment, and that counsel’s failure to make
those motions thus provided him with ineffective assistance. According to the testimony at
Petitioner’s trial, the shotgun was recovered shortly after state troopers spotted the carjacked
vehicle in this case. Trooper Kazan testified that on November 7, 2011, after being informed of
the BMW being stolen during an armed carjacking, he and his partner spotted a BMW matching
the description of the stolen vehicle with a woman inside with two males – later identified as
Petitioner and his codefendant Darby – matching the general description of the carjackers standing
just outside the vehicle. (Docket No. 13-56 at ECF No. 84 at 129-132). After calling for
assistance, the troopers then approached the vehicle and placed the woman under arrest for
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receiving stolen property in the form of the stolen BMW. (Id. at 132-34). After the woman told
the troopers that Darby had driven the vehicle, they then also placed him under arrest. (Id. at 13435). “[L]ess than two or three minutes” later, Darby’s fiancée exited a nearby residence and
demanded to know what was happening to Darby. (Id. at 135-36, 160). When she became
belligerent and began to interfere in Darby’s arrest, the troopers arrested her. (Id. at 136). Based
on the information that the carjackers had been armed, and following the arrival and interference
of Darby’s fiancée which suggested others might who could be armed and pose a danger to the
officers could have been within the residence, two troopers entered the open front door of the
residence from which Darby’s fiancée had exited to perform a security sweep. (Id. at 137, 16062). During that sweep, the troopers found the door to the apartment on the third floor open while
all of the remaining doors were locked. (Id. at 162-65). The troopers then entered that third floor
open door and while sweeping the area “located a shotgun in plain view” on the floor of a “wide
open” closet. (Id. at 137-38, 162-65). The troopers later learned that the apartment belonged to
Darby, his fiancée, and the woman they had arrested inside the BMW. (Id. at 139). Although
Petitioner may have lived in that apartment at one point, at the time of the arrest, Petitioner
provided a different address as his place of residence to the troopers.1 (Id. at 152-53).
Based on this testimony, it is clear that any motion to suppress the shotgun would have
1
In his brief, Petitioner attempts to argue that the search which produced the weapon occurred as
a result of police finding keys to Darby’s apartment in his pockets. The trial testimony of the
Troopers, however, belies that claim – they clearly testified that the search occurred in the form of
a protective sweep that followed from the failure to find a gun on Petitioner or Darby and the
interference in their arrest by Darby’s fiancée, leading officers to fear that other possibly armed
individuals might still be waiting inside to interrupt the arrest. Thus, Petitioner is mistaken to the
extent he believes that the keys on his person in any way led to the recovery of the gun.
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been fruitless. Even if this Court were to assume that Petitioner had standing to object to the
protective sweep of Darby’s apartment,2 Petitioner has not shown that a motion to suppress the
shotgun would have succeeded. The testimony indicates that, although there was no search
warrant at the time of the gun’s discovery, that discovery occurred during a legal protective sweep
which occurred in response to the report of a shotgun being used in the carjacking, and the trooper’s
concerns that a further armed individual may follow the example of Darby’s fiancé to attack the
troopers or otherwise interfere in the arrest of Darby and Petitioner. See, e.g., Maryland v. Buie,
494 U.S. 325, 334 (1990) (incident to arrest a police officer may conduct a limited protective
sweep of areas of a home where he reasonably suspects dangerous individuals may be hiding
without a warrant). It was during this protective sweep that the gun was discovered in plain view
of the searching troopers. Police therefore did not need a warrant to seize the weapon discovered
in plain view during the protective sweep. Buie, 494 U.S. at 330, 334. Any motion to suppress
the shotgun would thus have been without merit, and counsel was not ineffective in failing to make
such motion. Wets, 228 F.3d at 203; Aldea, 450 F. App’x at 152.
Although the fruitlessness of the motion is sufficient to render Petitioner’s claim meritless,
In order to raise a Fourth Amendment objection to a search, a defendant “must show that his own
constitutional rights have been violated by the search in question, i.e., that he has standing.”
United States v. King, 364 F. App’x 781, 786 (3d Cir. 2010); see also United States v. Padilla, 508
U.S. 77, 81-82 (1993). “To establish standing, the party contesting the legality of the search bears
the threshold burden of establishing that he . . . had a reasonable expectation of privacy in the
property searched and the item seized.” King, 364 F. App’x at 786. For a defendant to have a
reasonable expectation of privacy in the apartment of another, he must generally either be a coresident or overnight guest of the apartment’s occupant. Id. at 786 n. 6. Although the testimony
hear suggests that Petitioner may have once resided in Darby’s apartment temporarily, Petitioner
himself provided a different address as his dwelling place when questioned by the police. Thus,
it is questionable whether Petitioner, to the extent he was not a co-resident or overnight guest, had
standing to challenge the search of Darby’s apartment. Id.
2
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the Court also notes that the suppression of the discovered shotgun was of no ultimate value to
Petitioner’s cause, and Petitioner was therefore not prejudiced by the failure to object to it. At
trial, Petitioner did not deny that a shotgun was used in the carjacking to which he had already
pled guilty, nor could he – both the victims and Darby would testify to the use of the weapon.
Instead, Petitioner’s defense was based entirely on the assertion that it was Darby, in whose home
the shotgun was recovered, who possessed the gun and used it on the night of the carjacking, and
that Petitioner was unaware of the gun. (See, e.g., Docket No. 13-56 at ECF No. 86 at 14-16).
That the gun was recovered from Darby’s apartment helped, rather than hindered, Petitioner’s
defense. Suppressing that information would in no way have supported Petitioner’s defense, and
Petitioner was therefore not prejudiced by counsel’s failure to object to the gun evidence pre-trial
for that reason as well.
In his final claim, Petitioner asserts that he received ineffective assistance during plea
negotiations because he contends that counsel told him that no one could identify him and that he
should therefore not plead guilty to the brandishing charge, leading Petitioner to reject a plea
agreement he otherwise would have accepted as to that charge. Although counsel’s pre-trial
motions suggest that counsel at least on the eve of trial was aware that Darby would testify that
Petitioner was the owner and user of the gun during the carjacking, that fact alone does not
contradict Petitioner’s allegation that, at the time he rejected the offered plea, counsel believed and
informed Petitioner that no one could testify that it was Petitioner and not Darby who used and
possessed the shotgun. Because the record therefore does not refute Petitioner’s allegations, and
because Petitioner’s allegations, if found credible by the Court following a full hearing on this
issue, could support a plausible claim for relief, this Court will grant Petitioner a hearing limited
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solely to this final claim as discussed above.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Because jurists of reason could not disagree with this Court’s conclusion that Petitioner’s claims
other than his plea-related ineffective assistance claim are without merit, Petitioner has failed to
make a substantial showing of the denial of a constitutional right as to those claims, and no
certificate of appealability shall issue as to Petitioner’s non-plea related claims.
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IV. CONCLUSION
For the reasons stated above, this Court GRANTS Petitioner a hearing solely as to his plearelated ineffective assistance of counsel claim, GRANTS Petitioner’s request for the appointment
of counsel (ECF No. 10) solely for the purposes of that hearing, DENIES all of Petitioner’s
remaining claims, and DENIES Petitioner a certificate of appealability as to his non-plea related
claims. An appropriate order follows.
Dated: September 19, 2018
s/ Susan D. Wigenton_
Hon. Susan D. Wigenton,
United States District Judge
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